Citation NR: 9719938
Decision Date: 06/06/97 Archive Date: 06/13/97
DOCKET NO. 92-24 146 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for the cause of the
veteran’s death.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
A. P. Simpson, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1961 to June 1965
and from January 1972 to April 1972. He died on July [redacted],
1991. The appellant is his widow.
This case comes before the Board of Veterans’ Appeals (the
Board) on appeal from an October 1991 rating decision of the
Montgomery, Alabama, Department of Veterans Affairs (VA)
Regional Office (RO). The Board remanded this case in July
1993. The requested development was accomplished and the
case was returned to the Board. In December 1996, the Board
sought a medical opinion regarding a medical question
involved in the case from a Chief Medical Director of the
Veterans Health Administration in accordance with 38 C.F.R.
§ 20.901(a) (1996). The medical opinion was received by the
Board and a copy of the medical opinion was sent to the
appellant’s representative on February 25, 1997, with an
opportunity to respond. No response was received within the
60-day period and thus the case is ready for further
appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that her husband was constantly
exposed to carbon tetrachloride while in service, causing the
liver failure that caused his death. She avers that
dependency and indemnity compensation (DIC) benefits should
be granted to her on this basis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record
in the veteran's claims file. Based on its review of the
relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the
appellant has not met her statutory duty of submitting
evidence sufficient to justify a belief that her claim for
service connection for the cause of the veteran’s death is
well grounded.
FINDINGS OF FACT
1. The veteran served on active duty from June 1961 to June
1965 and from January 1972 to April 1972.
2. The veteran’s service records indicate that he was
diagnosed with and treated for ulcerative colitis during his
second period of service and that this condition had
preexisted this period of service.
3. The veteran died in July 1991 due to hypotension
(immediate cause of death) and liver failure and thrombosed
portal vein (underlying causes).
4. At the time of his death, the veteran did not have a
disability recognized by VA as causally related to ulcerative
colitis.
5. The appellant has presented no competent medical evidence
linking the cause of the veteran’s death to any event or
etiology in service.
CONCLUSION OF LAW
The claim for service connection for the cause of the
veteran’s death is not well grounded and there is no further
statutory duty to assist the appellant in developing facts
pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
DIC is paid to a surviving spouse of a qualifying veteran who
died from a service-connected disability. 38 U.S.C.A. § 1310
(West 1991); see Hanna v. Brown, 6 Vet.App. 507, 510 (1994).
To establish entitlement to service connection for the cause
of the veteran’s death, the evidence of record must show that
a disability incurred or aggravated in service was either the
principal or a contributory cause of death. 38 C.F.R.
§ 3.312 (1996). A service-connected disability will be
considered as the principal cause of death when such
disability, “singly or jointly with another condition, was
the immediate or underlying cause of death or was
etiologically related thereto.” 38 C.F.R. § 3.312(b). To be
considered a contributory cause of death, it must be shown
that the service-connected disability “contributed
substantially or materially” to death, “combined to cause
death,” or “aided or lent assistance to the production of
death.” 38 C.F.R. § 3.312(c)(1). It is not sufficient to
show that the service-connected disability casually shared in
producing death; rather, a causal connection must be shown.
Id. A claim for DIC is like any other claim for service-
connected benefits and must be well grounded. See Johnson v.
Brown, 8 Vet.App. 423, 426 (1995); 38 U.S.C.A. § 5107(a)
(West 1991).
A well-grounded claim is a plausible claim, one which is
meritorious on its own or capable of substantiation. Murphy
v. Derwinski, 1 Vet.App. 78, 81 (1990). Specifically, it
requires medical evidence of a current disability, medical
or, in certain circumstances, lay evidence of incurrence or
aggravation of a disease or injury in service, and medical
evidence of a nexus between an inservice injury or disease
and the current disability. See Caluza v. Brown, 7 Vet.App.
498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.
1996) (table). The kind of evidence needed to make a claim
well grounded depends upon the types of issues presented
by the claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993).
For some factual issues, competent lay evidence may be
sufficient; however, where the claim involves issues of
medical fact, such as medical causation or medical diagnoses,
competent medical evidence is required. Ibid.
The veteran died on July [redacted], 1991. The immediate cause of
death, as noted on the death certificate, was hypotension,
and the underlying causes were liver failure and thrombosed
portal vein. The autopsy was done in August 1991. The
physician performing the autopsy reported the findings to be
“marked jaundice, hepatomegaly, ascites, small bilateral
pleural effusions, organizing portal vein thrombosis, and
pulmonary congestion.” The physician noted that microscopic
examination showed evidence of hepatitis, which was
determined to be chronic and “apparently acquired via [blood]
transfusion.”
The veteran apparently had a history of ulcerative colitis
when he entered the service in January 1972 to attend Officer
Candidate School (OCS). In February 1972, he was
hospitalized in Norfolk, Virginia, and diagnosed with
ulcerative colitis. The veteran was suffering from cramping
and lower quadrant abdominal pain and diarrhea, with watery
stools and stools mixed with blood and mucous. A service
physician noted in the medical history that the veteran
stated that he had been suffering from these symptoms for the
four years prior to his admission to OCS. It was further
noted that the veteran had told the physician, who had
conducted the entrance examination the prior month, of these
symptoms; however, he was still accepted to OCS. A
sigmoidoscopy revealed “classical changes of ulcerative
colitis with mucous and small ulcerative changes in a patchy
distribution.” The veteran was prescribed medication. A
sigmoidoscopy performed approximately one month later showed
no ulcerations. Based on the history provided by the veteran
that he suffered from ulcerative colitis prior to service,
and on the fact that the veteran was admitted to the hospital
only one month after
entering the service, a service physician recommended that
the veteran be discharged from service based on a preexisting
defect. The veteran was discharged from service in April
1972.
Subsequent to service, in April 1973, the veteran was
admitted to the Druid City Hospital in Tuscaloosa, Alabama,
for evaluation of jaundice and was diagnosed with sclerosing
cholangitis. A private physician noted that the veteran had
been diagnosed with and treated for ulcerative colitis in
service, the manifestations thereof being “no longer part of
the present clinical picture.” The physician noted that the
veteran’s jaundice had initially subsided, but had later
deepened. It was recommended that the veteran be transferred
to the University Hospital in Birmingham, Alabama. The
veteran was admitted there that same month and diagnosed with
and treated for sclerosing cholangitis, secondary to chronic
ulcerative colitis. The treating physician there noted that
the veteran’s renal function was deteriorating and became a
main concern. Drainage of bilious material was started and
the veteran’s liver and renal function improved steadily. He
was placed on medication and a regular diet and was
discharged in June 1973.
A July 1973 summary sheet from Broaddus Hospital in Philippi,
West Virginia, shows that the veteran had been admitted to
that hospital for care of “choledocho-cutaneous fistula with
persistent jaundice following what was diagnosed as
sclerosing cholangitis.” He received three blood
transfusions at that time. That same month, he was seen by
Dr. Karl J. Myers, Jr. and tested positive for hepatitis. In
August 1973, the RO granted the veteran nonservice-connected
pension for sclerosing cholangitis secondary to chronic
ulcerative colitis, rated as 60 percent disabling.
In October 1981, a VA medical examination showed that the
veteran was not symptomatic for jaundice, sclerosing
cholangitis, or ulcerative colitis at that time. A VA
physician diagnosed sclerosing cholangitis and ulcerative
colitis, both of which
he determined to be in remission, and hepatitis, which was
old with no residuals. In November 1981, the RO decreased
the veteran’s nonservice-connected pension to 10 percent
disabling. In January 1988, the veteran underwent a liver
transplant. He later suffered from acute liver transplant
rejection and died in July 1991.
In October 1991, the appellant brought her DIC claim, stating
that the veteran had been exposed to carbon tetrachloride
while he was in service, and that this exposure caused his
liver failure. The RO solicited a medical opinion regarding
the possibility that the veteran incurred sclerosing
cholangitis through exposure to carbon tetrachloride. In
January 1996, Dr. Robert L. Dorrough, a diplomate of the
American Board of Surgery, answered questions regarding
whether the veteran had been exposed to carbon tetrachloride
while in service, and whether the chemical caused the
veteran’s sclerosing cholangitis and thus his subsequent
course of fatal liver disease. Dr. Dorrough conceded that
the veteran had been exposed to such chemical because the
veteran had claimed to be and the service records were silent
as to this issue. However, he would not reference the degree
of the veteran’s exposure. His letter stated that he had
reviewed the claims file in its entirety. His opinion was as
follows:
The veteran had sudden onset of
ulcerative colitis [two and one half]
years after separation from service[,]
and this was found to have been present
when he re[-] enlisted in Jan[uary] 1972.
About [seven to eight] years after
separation from service, he was found to
have sclerosing cholangitis. Sclerosing
cholangitis[,] which is rare[,] has been
frequently found to be associated with
ulcerative colitis. However, this does
not presume that it is caused by the
ulcerative colitis but that more probably
that there is a common mechanism involved
in their causation
No reference of sclerosing cholangitis
being associated with toxic chemicals,
specifically [carbon tetrachloride], has
been found. As noted above, hepatic
toxicity to [carbon tetrachloride] is
usually acute and parenchymal. In this
case[,] the sclerosing cholangitis was
first diagnosed many years after the
alleged exposure.
To conclude that the veteran[’]s
sclerosing cholangitis was caused by
[carbon tetrachloride] would be
speculation and theory without scientific
support at this time.
In December 1996, the Board sought a medical opinion from a
Chief Medical Director of the Veterans Health Administration
regarding issues presented in this case. See 38 C.F.R.
§ 20.901. The questions presented in the request were as
follows:
(1) Did sclerosing cholangitis first
become manifest during the veteran’s
period of active service from January
1972 to April 1972? If not, when did it
become initially manifest? If sclerosing
cholangitis preexisted the veteran’s
period of active duty in 1972, was it
aggravated during that period of active
service?
(2) What is the relationship between
sclerosing cholangitis and ulcerative
colitis? Is it causal or associative
(3) What role did ulcerative colitis
play, if any, in the causes of the
veteran’s death, as listed on the death
certificate and the VA autopsy report?
Dr. Arun Samanta, Chief of Digestive Diseases, submitted
answers to the above questions to the Board. As to the first
question, Dr. Samanta noted that the first documentation in
the claims file of sclerosing cholangitis was in April 1973.
Based on the history provided in the hospital discharge
summary from University Hospital in Birmingham, Alabama
(dated from April 1973 to June 1973), Dr. Samanta opined that
the veteran was evidencing sclerosing cholangitis beginning
in April 1972 through the fall of that same year. Based on
the evidence of record, he did not believe that sclerosing
cholangitis preexisted the veteran’s active duty in 1972. As
to the second question, he answered that sclerosing
cholangitis is “associated with” ulcerative colitis. He
further stated that the “association of sclerosing
cholangitis and ulcerative colitis is complex and poorly
understood.” As to the last question, Dr. Samanta noted that
the autopsy findings showed evidence of ulcerative colitis;
however, he believed that “[u]nder the circumstances[,] it is
unlikely that ulcerative colitis played a significant role in
the death of the veteran.”
Considering the foregoing facts, the Board concludes that the
appellant has not submitted evidence sufficient to render her
claim of service connection for the cause of the veteran’s
death well grounded. See Caluza v. Brown, 7 Vet.App. at 498.
As indicated by Dr. Samanta’s medical opinion, the medical
evidence does not demonstrate any etiological relationship
between the ulcerative colitis diagnosed and treated in
service and the cause of the veteran’s death. Dr. Samanta
had the benefit of having the veteran’s claims file before
him and thus this opinion is given even greater weight;
significantly, there is no other medical evidence that
conflicts with Dr. Samanta’s medical opinion.
The appellant has submitted medical literature pertaining to
the relationship between carbon tetrachloride exposure and
liver disease to show that the veteran must have incurred
some sort of liver disease in service, which caused his
death. However, Dr. Dorrough’s medical opinion stated that
the veteran’s diagnosis of sclerosing cholangitis was not
related to the veteran’s exposure to carbon tetrachloride.
Comparing the appellant’s medical literature to Dr.
Dorrough’s medical opinion, which was based on the actual
facts presented in this case, the appellant’s medical
literature cannot be considered probative evidence in support
of the proposition that the veteran’s death was caused by
exposure to carbon tetrachloride. Further, there is no
evidence of record showing that the veteran was exposed to
carbon tetrachloride. The evidence submitted by the
appellant does not provide the kind of evidence needed to
well ground the claim, i.e., medical evidence establishing a
relationship between any onset or aggravation of ulcerative
colitis during the veteran’s service, and his death.
The Board notes that the record reflects that the veteran was
diagnosed with sclerosing cholangitis one year after
discharge. Although there are two medical diagnoses in the
record of “sclerosing cholangitis, secondary to ulcerative
colitis,” there are also two medical opinions in the record
that note that sclerosing cholangitis is associated with
ulcerative colitis, not caused by ulcerative colitis. The
two medical opinions in the record noting that the two
diseases are associative are more probative in that the two
doctors, Dr. Dorrough and Dr. Samanta, had the benefit of
review of the entire claims file; in addition, both cited
medical treatises in support of their position. Further, the
veteran’s death certificate and autopsy do not state that the
veteran died from either sclerosing cholangitis or ulcerative
colitis. Accordingly, without evidence that the veteran’s
ulcerative colitis was incurred or
aggravated in service or was etiologically related to the
veteran’s death, the appellant’s claim that the veteran death
was due to service is not well grounded. See Caluza, supra.
The Board has carefully considered the appellant’s
statements; however, her contentions alone cannot meet the
burden imposed by 38 U.S.C.A. § 5107(a) with respect to the
existence of a service-connected disability and a
relationship between that disability and her husband’s death.
Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Based on the
above findings, the Board can identify no basis in the record
that would make this claim for service connection plausible
or possible. 38 U.S.C.A. § 5107(a); see Grottveit, 5
Vet.App. at 92, and Murphy, 1 Vet.App at 81.
Where the appellant has not met this burden, VA has no
further duty to assist her in developing facts pertinent to
her claim, including no duty to solicit another medical
opinion. 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v.
Derwinski, 2 Vet.App. 141, 144 (1992) (where the claim was
not well grounded, VA was under no duty to provide the
veteran with an examination).
Although where a claim is not well grounded VA does not have
a statutory duty to assist a claimant in developing facts
pertinent to the claim, VA may be obligated under 38 U.S.C.A.
§ 5103(a) to advise a claimant of evidence needed to complete
the application. This obligation depends on the particular
facts of the case and the extent to which the Secretary has
advised the claimant of the evidence necessary to be
submitted with a VA benefits claim. Robinette v. Brown, 8
Vet.App. 69 (1995). Here, the RO more than adequately
fulfilled its obligation under section 5103(a) in the
Statement of the Case and the Supplemental Statements of the
Case issued during the pendency of the appeal. In this
respect, the Board is satisfied that the obligation imposed
by section 5103(a) has been satisfied. See Franzen v. Brown,
9 Vet.App. 235 (1996) (VA’s obligation under sec. 5103(a) to
assist claimant in
filing his claim pertains to relevant evidence which may
exist or could be obtained). See also Epps v. Brown, No. 93-
438 (U. S. Vet.App. Aug. 27, 1996) (sec. 5103(a) duty
attaches only where there is an incomplete application which
references other known and existing evidence). It is not
shown nor contended that additional relevant evidence exists
that has not already been associated with the claims file.
Further, since it is not shown or argued that the medical
opinion prepared by Dr. Samanta is in some way deficient or
defective, the Board finds that additional development by way
of another medical opinion would be redundant and
unnecessary. The mere fact that Dr. Samanta’s opinion is
adverse to the appellant is not sufficient to warrant
additional development.
Although the RO did not specifically state that it denied the
appellant’s claim on the basis that it was not well grounded,
the Board concludes that this was harmless. See Edenfield v.
Brown, 8 Vet.App. 384 (1995) (en banc) (remedy for deciding
on the merits a claim that is not well grounded should be
affirmance, on the basis of nonprejudicial error, of the
decision by agency of original jurisdiction). Accordingly,
the Board must deny the appellant’s claim for service
connection for the cause of the veteran’s death as not well
grounded. Edenfield, 8 Vet.App. at 390 (disallowance of a
claim as not well grounded amounts to a disallowance of the
claim on the merits based on insufficiency of evidence).
ORDER
Service connection for the cause of the veteran’s death is
denied.
(CONTINUED ON NEXT PAGE
MICHAEL S. SIEGEL
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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